Citation Nr: 1523347
Decision Date: 06/02/15 Archive Date: 06/16/15
DOCKET NO. 12-04 310 ) DATE
)
)
Received from the
Department of Veterans Affairs Regional Office in New York, New York
THE ISSUES
1. Entitlement to an initial compensable schedular rating for right knee limitation of motion due to arthritis prior to February 1, 2012.
2. Entitlement to an initial schedular rating in excess of 10 percent for right knee limitation of motion due to arthritis at any time during the pendency of the appeal.
3. Entitlement to an increased schedular rating for right knee instability due to an injury, currently evaluated as 10 percent disabling.
4. Entitlement to an extra-schedular rating in excess of 10 percent for right knee limitation of motion due to arthritis.
5. Entitlement to an extra-schedular rating in excess of 10 percent for right knee instability due to an injury.
6. Entitlement to a total rating based on individual unemployability (TDIU).
ATTORNEY FOR THE BOARD
N. T. Werner, Counsel
INTRODUCTION
The Veteran served on active duty from March 1992 to May 1993.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut that confirmed and continued a 10 percent schedular rating for right knee instability due to an injury. The Veteran thereafter moved and jurisdiction over the appeal was transferred to the RO in New York, New York.
In a May 2014 rating decision, the RO awarded the Veteran a separate 10 percent schedular rating for right knee limitation of motion due to arthritis, effective February 1, 2012, even though the claim has been pending since April 14, 2010. In view of this action as well as VAOPGCPREC 23-97 (July 1, 1997) and the United States Court of Appeals for Veterans Claims (Court) holdings in AB v. Brown, 6 Vet. App. 35 (1993) and Brambley v. Principi, 17 Vet. App. 20, 24 (2003), the Board has characterized the issues on appeal as set forth on the title page.
Given the claims made by the Veteran in his February 2012 VA Form 9, Appeal to Board of Veterans' Appeals, regarding the adverse impact his service-connected right knee disorders have on his employment, the Board also finds that the record raises a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009).
The claims for extra-schedular ratings for the right knee disorders as well as the claim for a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. At all times prior to February 1, 2012, the most probative evidence of record shows that the Veteran had pain with lost right knee motion.
2. At all times during the pendency of the appeal, the most probative evidence of record shows that the Veteran's right knee arthritis with limitation of motion is not manifested by flexion of the knee limited to at least 45 degrees or extension of the knee limited to at least 10 degrees even taking into account his complaints of pain.
3. At all times during the pendency of the appeal, the most probative evidence of record shows that the Veteran's right knee injury with instability is not manifested by at least moderate recurrent subluxation or lateral instability.
4. At all times during the pendency of the appeal, the most probative evidence of record shows that the Veteran's service-connected right knee disorders are not manifested by ankylosis or impairment of the tibia and fibula.
CONCLUSION OF LAW
1. At all times prior to February 1, 2012, the criteria for a 10 percent schedular rating for right knee limitation of motion due to arthritis have been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010 (2014).
2. At all times during the pendency of the appeal, the criteria for a schedular rating in excess of 10 percent for right knee limitation of motion due to arthritis have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2014).
3. At all times during the pendency of the appeal, the criteria for a schedular rating in excess of 10 percent for right knee instability due to an injury have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Code 5257 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).
Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a).
The Board finds that a letter dated in May 2010, prior to the July 2010 rating decision, provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. Further, even if the above letters did not provide adequate 38 U.S.C.A. § 5103(a) notice, the Board finds that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claims after reading the above letter as well as the rating decision, the statement of the case, the supplemental statement of the case, and the Remand. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).
As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the service treatment records as well as his post-service records from Dr. D.J. Morgan from Kings Highway Orthopaedic Associates and Dr. Shapiro from Orthopaedic Care of Long Island in substantial compliance with the Board's remand instructions. See 38 U.S.C.A. § 5103A(b); Dyment v. West, 13 Vet. App. 141 (1999); D'Aries v. Peake, 22 Vet. App. 97 (2008). The Veteran was provided VA examinations in November 2011 and January 2015. The Board finds the VA examinations are adequate for rating purposes, and as to the post-remand VA examination substantially complies with the Board's remand instructions, because after a comprehensive examination of the claimant and either taking a detailed history from the claimant or a review of the record, the examiners provided opinions as to the severity of his right knee disorders that allows the Board to rate them under all relevant Diagnostic Codes. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); D'Aries; Dyment.
In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).
In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's Virtual VA and VBMS claims files.
The Rating Claims
The Veteran asserts that his right knee disorders met the criteria for higher evaluations.
Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2014). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2014). When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999).
Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20.
In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998).
On April 14, 2010, the Veteran filed his claim for an increased rating for his service-connected right knee disorder. The July 2010 rating decision confirmed and continued a 10 percent rating for his right knee injury with instability under 38 C.F.R. § 4.71a, Diagnostic Code 5257. A subsequent May 2014 rating decision granted the Veteran a separate 10 percent rating for right knee arthritis with limitation of motion under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260 effective from February 1, 2012.
In this regard, Under 38 C.F.R. § 4.71a, Diagnostic Code 5010, traumatic arthritis is rated under Diagnostic Code 5003. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5256, ankylosis at a favorable angle in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent rating; ankylosis with flexion between 10 degrees and 20 degrees warrants a 40 rating; ankylosis with flexion between 20 degrees and 45 degrees warrants a 50 rating; and extremely unfavorable ankylosis (flexion at an angle of 45 degrees or more) warrants a 60 percent rating.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling. Moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling. And, severe recurrent subluxation or lateral instability warrants a 30 percent rating.
The terms "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2014). The use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2014).
Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, removal of the semilunar cartilage when symptomatic warrants a 10 percent rating.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order. If flexion of the knee is limited to 30 degrees a 20 percent rating is in order. If flexion of the knee is limited to 15 degrees a 30 percent rating is in order.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order. If extension of the knee is limited to 15 degrees a 20 percent rating is in order. If extension of the knee is limited to 20 degrees a 30 percent rating is in order. If extension of the knee is limited to 30 degrees a 40 percent rating is in order. If extension of the knee is limited to 45 degrees a 50 percent rating is in order.
Full range of motion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II (2014).
Under 38 C.F.R. § 4.71a, Diagnostic Code 5262, impairment of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating; with moderate knee or ankle disability warrants a 20 percent rating; with marked knee or ankle disability warrants a 30 percent rating; and with nonunion (loose motion requiring brace) warrants a 40 percent rating.
Under 38 C.F.R. § 4.71a, Diagnostic Code 5263, Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) warrants a 10 percent rating.
When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).
Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.
The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011).
In Esteban v. Brown, 6 Vet. App. 259, 261 (1994), that Court held that in cases where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for an appellant to have "separate and distinct manifestations" from the same injury, permitting separate disability ratings. The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. Id.
In this regard, VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disorder includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in planes of movement were each compensable. Id.
VA General Counsel has also held that separate ratings may be assigned in cases where the service-connected knee disorder includes both arthritis and instability, provided of course, that the degree of disability is compensable under each set of criteria. VAOPGCPREC 23-97 (July 1, 1997).
a. Right Knee Limitation of Motion Prior to February 1, 2012
With the above criteria in mind, the Board notes that at all times during the pendency of the appeal the Veteran has complained of right knee pain with motion. Likewise, when examined by VA in November 2011 the Veteran complained of daily pain and on examination the range of motion was reduced at 0 to 120 degrees. The examiner also opined that the Veteran had pain with movement of the right knee. Similarly, at the January 2015 VA examination the Veteran complained of right knee pain and on examination the range of motion was reduced at 0 to 130 degrees. The examiner also opined that there is evidence of pain with weight bearing and pain and weakness with repeated use. Furthermore, right knees X-rays taken at the January 2014 VA examination as well as by Dr. D.J. Morgan in February 2012 and Dr. Shapiro in August 2014 all confirm a diagnosis of arthritis.
The Board finds the Veteran complaints of right knee pain both competent and credible because it is something he can feel and it is consistent with the nature of his service-connected disability as well as the findings by the VA examiners. See Davidson. Thus, taking into account 38 C.F.R. §§§ 4.40, 4.45 4.59 the Board finds that the Veteran's symptoms meet the criteria for a 10 percent schedular rating under Diagnostic Code 5003. Also see Burton. Furthermore, because the severity of the Veteran's adverse symptomatology has been substantially the same throughout the period of time during which his claim has been pending, the Board finds that this 10 percent schedular rating is effective at all times prior to February 1, 2012, and a staged rating is not warranted. See Hart, Fenderson.
b. Right Knee Limitation of Motion at all Times During the Appeal
As to an increased rating under Diagnostic Code 5260 or Diagnostic Code 5261 and/or separate compensable ratings under both Diagnostic Code 5260 and Diagnostic Code 5261, at the November 2011 VA examination the pain free range of motion of the right knee after repetition is 0 to 120 degrees. The VA examiner also reports that the Veteran has pain with movement as well as problems with right knee swelling, tenderness to palpation, effusion, crepitus, and genu varus. However, his muscle strength was normal.
Similarly, a February 2012 letter from Kings Highway Orthopedic Associates reports that the Veteran can flex to around 115 degrees on the right.
At the January 2015 VA examination, the pain free range of motion of the right knee after repetition is 0 to 130 degrees. The VA examiner also reports that the Veteran has retropatellar joint line pain, pain with weight bearing, medial parapatellar tenderness, and crepitus. It was opined that pain and weakness limited his functional ability. He also has daily flare-ups lasting 1 to 3 days. Muscle strength is reduced at 4/5 with flexion and extension. He also has muscle atrophy.
Likewise, an August 2014 consultation from Dr. Shapiro of Orthopaedic Care of Long Island reports that the range of motion of the right knee is 0 to 120 degrees.
Initially, the Board finds that the above examiners opinions as to the pain free range of motion of the right knee more probative than any lay claims from the appellant to the contrary even though his symptomatology is observable by a lay person (see Davidson) because the examiners have medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators. . ."). Therefore, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca as well as Mitchell, the Veteran's functional losses did not equate to the criteria required for increased schedular ratings under Diagnostic Code 5260 or Diagnostic Code 5261 because flexion is not limited to at least 30 degrees and extension is not limited to at least 15 degrees because at its worst his pain free range of motion is 0 to 115 degrees. Furthermore, because the severity of the Veteran's adverse symptomatology has been substantially the same throughout the period of time during which his claim has been pending, the Board finds that a staged rating is not warranted. See Hart, Fenderson.
Likewise, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca as well as Mitchell, the Veteran's functional losses did not equate to the criteria required for separate compensable schedular ratings under both Diagnostic Code 5260 and Diagnostic Code 5261 because flexion is not limited to at least 45 degrees and extension is not limited to at least 10 degrees because at its worst his pain free range of motion is 0 to 115 degrees. Furthermore, because the severity of the Veteran's adverse symptomatology has been substantially the same throughout the period of time during which his claim has been pending, the Board finds that a staged rating is not warranted. See Hart, Fenderson.
c. Right Knee Instability at all Times During the Appeal
As to an increased rating under Diagnostic Code 5257, at the November 2011 VA examination it was opined that right knee anterior, posterior, and medial-lateral instability are normal and there is no evidence or history of recurrent patella subluxation/dislocation. Nonetheless, it was also reported that the Veteran occasionally uses a knee brace.
A February 2012 letter from Kings Highway Orthopedic Associates reports that the Veteran's medial and lateral collateral ligaments are stable with just a "slight" medial give. Additionally, it reports that his Lachman and Anterior drawer are positive.
At the January 2015 VA examination, it was opined that the Veteran does not have right knee instability with normal anterior, posterior, and medial-lateral instability. Nonetheless, it was also reported that the Veteran occasionally uses a knee brace.
The Board finds that the examiners opinions as to the severity of the Veteran's right knee instability more probative than any lay claims to the contrary even though his symptomatology is observable by a lay person (see Davidson) because the examiners have medical training. See Black; Guerrieri. Thus, the Board finds that the most probative evidence of record shows that the Veteran's right knee instability is not manifested by pathology that equates to at least "moderate" recurrent subluxation or lateral instability because neither problem was found by either VA examiner and the Veteran's private doctor only found "slight" instability. Accordingly, the Board finds that the criteria for a schedular rating in excess of 10 percent for right knee instability are not met. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Further, because the severity of the Veteran's symptoms have been substantially the same throughout the appeal, the Board finds that a staged rating is not warranted. See Hart, Fenderson.
d. Other Criteria Used for Rating Knee Disabilities at all Times During the Appeal
As to an increased schedular rating under Diagnostic Code 5256 for ankylosis, while the range of motion of the right knee is restricted at both VA examinations, the record on appeal never shows it being ankylosed. In fact, the January 2015 VA examiner specifically opined it was not ankylosed and this medical opinion is not contradicted by any other medical opinion of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In the absence of ankylosis, the Board may not rate his service-connected right knee disability as ankylosis. See Johnston v. Brown, 10 Vet. App. 80 (1997). Consequently, an increased schedular rating is not warranted for the Veteran's right knee disability under Diagnostic Code 5256. Furthermore, because the severity of the Veteran's adverse symptomatology has been substantially the same throughout the period of time during which his claim has been pending, the Board finds that a staged rating is not warranted. See Hart, Fenderson.
As to an increased rating under Diagnostic Code 5262 for impairment of the tibia and fibula and/or under Diagnostic Code 5258 for dislocated semilunar cartilage, the Board notes that the record on appeal is negative for this adverse symptomatology. See, for example, VA examinations dated in November 2011 and January 2015; right knee X-rays taken at the January 2014 VA examination as well as by Dr. D.J. Morgan in February 2012 and Dr. Shapiro in August 2014. In the absence of this adverse symptomatology, the Board will not rate his service-connected right knee disability under Diagnostic Code 5262 or Diagnostic Code 5258 and the claim is denied. See Butts v. Brown, 5 Vet. App. 532, 540 (1993) (the Board's choice of a diagnostic code should be upheld if it is supported by explanation and evidence). Furthermore, because the severity of the Veteran's adverse symptomatology has been substantially the same throughout the period of time during which his claim has been pending, the Board finds that a staged rating is not warranted. See Hart, Fenderson.
As to an increased rating under Diagnostic Code 5259 for removal of the semilunar cartilage when symptomatic and/or under Diagnostic Code 5263 for Genu recurvatum, the Board notes that the schedular disability ratings already assigned the Veteran's service-connected right knee disorders meets the maximum rating possible under these code sections at all times during the pendency of the appeal. See 38 C.F.R. § 4.71a; Also see Hart, Fenderson. Therefore, an increased schedular rating must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit); Also.
In reaching the above conclusions, the Board has not overlooked the various lay statements found in the record. In this regard, the Veteran is credible to report on what he sees and feels such as pain, lost motion, and swelling. See Davidson. However, the Board finds more probative the medical opinions as to the severity of the right knee disabilities provided by the experts at the examinations than these lay assertions. See Black; Guerrieri.
ORDER
Subject to the law and regulations governing payment of monetary benefits, 10 percent schedular rating for right knee limitation of motion due to arthritis is granted at all times prior to February 1, 2012.
A schedular rating in excess of 10 percent for right knee limitation of motion due to arthritis is denied at all times during the pendency of the appeal.
A schedular rating in excess of 10 percent for right knee instability due to an injury is denied at all times during the pendency of the appeal.
REMAND
As to the claim for a TDIU, the Board finds that a remand is required to provide the Veteran with notice of the laws and regulations governing this claim as well as an opportunity to provide VA with evidence in support of this claim. See 38 U.S.C.A. §§ 5103, 5103A(b); Dingess v. Nicholson, 19 Vet. App. 473 (2006).
As to the claims for extra-schedular ratings for the right knee disorders, any development affecting the TDIU issue may have an impact on the complete picture of the Veteran's service-connected disabilities and their effect on his employability as it pertains to extraschedular consideration. See Brambley v. Principi, 17 Vet. App. 20, 24 (2003). Thus, the issues of entitlement to extraschedular ratings for the right knee disorders will also be remanded.
The record shows that the Veteran received ongoing treatment for his service connected disabilities. Therefore, while the appeal is in remand status any outstanding medical records should also be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(b).
Accordingly, these issues are REMANDED to the AOJ for the following actions:
1. Associate with the claims file any outstanding treatment records of the Veteran from any New York VA Medical Center.
2. Ask the Veteran to provide VA with authorizations for VA to obtain and associate with the claims file any outstanding private treatment records including his records from Dr. D.J. Morgan from Kings Highway Orthopaedic Associates and Dr. Shapiro from Orthopaedic Care of Long Island.
3. Provide the Veteran with notice of the laws and regulations governing at TDIU as well as ask him to provide VA with a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability.
4. Notify the Veteran he can submit lay statements from himself and from other individuals who have first-hand knowledge of the current problems caused by his right knee disorders and have first-hand knowledge of the impact his service-connected disabilities have on his ability to obtain and maintain employment. Provide them a reasonable time to submit this evidence.
5. Provide the Veteran with an appropriate VA examination, to be conducted, if possible, by a vocational rehabilitation specialist with respect to a TDIU. The claims file should be made available to the examiner and all appropriate tests should be performed.
(a) Evaluate whether the Veteran's service-connected disability picture-whether due to a single disability or a cumulative effect of multiple disabilities-impairs his ability to meet the demands of a job, either sedentary or physical.
(b) This should include evaluation of the limitations and restrictions imposed by his service-connected impairments on such work activities as sitting, standing, walking, lifting, carrying, pushing, and pulling.
All finding and conclusions should be set forth in a legible report, accompanied by a rationale.
6. Thereafter, adjudicating the claims. This adjudication should include obtaining a decision from the Director, Compensation and Pension as to whether either of the Veteran's service-connected right knee disorders is entitled to an extra-schedular rating.
7. If any benefit sought on appeal is not granted in full, the Veteran should be provided a supplemental statement of the case (SSOC) that includes notice of all relevant the laws and regulations including those governing a TDIU and extra-schedular ratings and citation to all evidence added to the claims file since the February 2015 SSOC. A reasonable period of time should be allowed for response before the appeal is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs